The case for compulsory mediation

The case for compulsory mediation in family law cases in Scotland: will it help ease the creaking system, or is it a step too far?

The issue of compulsory mediation is exercising legal minds on both sides of the Border and, as the appetite for change in Scotland increases, the matter of its feasibility or desirability becomes ever more relevant.

Mediation is an assisted negotiation, where parties voluntarily attend a neutral venue with a third-party who facilitates communication between them. In most cases, it is an appropriate and cost-effective means of dispute resolution.

But should it be compulsory?

In England and Wales, it was proposed that mediation become mandatory in all suitable low-level family court cases, excluding those which include allegations or a history of domestic abuse, and funding was planned for implementation.

However, after extensive consultations, the plans were dropped in favour of encouragement that couples take early legal advice.

The arguments against compulsion include that it is a contradiction in terms. The basic concern is that mandatory attendance at mediation is at odds with the consensual ethos at the heart of any alternative method of dispute resolution. Entry into mediation on a voluntary basis is widely considered to be a fundamental principle of the process.

Inequality in bargaining power

Another issue with the concept of mandatory mediation is the potential for inequality in bargaining power between the parties. Such inequalities manifest themselves in various forms.

There are, in contrast, many arguments in support of the introduction of mandatory mediation in Scots family law. Supporters highlight the potential cost and time-saving benefits of mediation compared to traditional litigation.

They argue that mandatory mediation could help alleviate pressure on the court system and facilitate more efficient resolution of family disputes.

Mindset shift

Before mandatory mediation will be successful in Scotland, a change of mindset is needed among many solicitors and the judiciary. The legal profession must lead the way in creating a more non-litigious culture in family law matters.

Moving forward, there is a need for further discussion and collaboration among participants, including solicitors, Sheriffs, and policymakers, to determine the most appropriate approach to integrating mediation into the Scottish legal process.

While mandatory mediation may not be suitable for every case, it could offer significant benefits in certain circumstances, particularly for families navigating complex disputes involving children.

With Scotland's civil courts under increasing pressure, relief is necessary – and mandatory mediation could provide it. Whilst some will always prefer to view mediation as a “complementary” method of dispute resolution, this is, arguably, not potent enough.

Growing acceptance

The gradually growing acceptance that mediation is the best forum for resolution of family disputes, coupled with the present under-utilisation of the process in Scotland and evidence of the success of mandatory mediation elsewhere, demands that serious consideration be given to the incorporation of mandatory mediation into the Scottish legal process.

Mediation has the ability to keep those people who are most important to children, their parents, communicating and making decisions about them in a safe, structured and respectful manner.

Mediation will not be the answer for every family, but in many cases, there is no harm in trying – at least for the sake of the children.

Written by Molly Somerville a Senior Solicitor at Complete Clarity Solicitors and Simplicity Legal.